State v. Raper

• Decision Date: 29 April 1987
• Docket Number: No. 17326-O-I,17326-O-I
• Citation: 47 Wn.App. 530,736 P.2d 680
• Parties: STATE of Washington, Respondent, v. McArthur RAPER, Appellant.
• Court: Washington Court of Appeals

Page 530

47 Wn.App. 530

736 P.2d 680

STATE of Washington, Respondent, v. McArthur RAPER, Appellant.

No. 17326-O-I.

Court of Appeals of Washington Division 1.

April 29, 1987.

Review Denied July 1, 1987.

Scott J. Engelhard, Washington Appellate Defender, Seattle, for McArthur Raper.

James W. Leslie, Deputy Pros. Atty., Seattle, for State.

SWANSON, Judge.

McArthur Raper appeals his jury conviction of first-degree robbery while armed with a deadly weapon and first-degree kidnapping while armed with a deadly weapon, claiming error in the denial of his motion to dismiss the charges against him for an alleged CrR 3.3 speedy trial violation. The sole issue raised in this appeal is whether the trial court manifestly abused its discretion in retroactively granting a five-day extension of the trial time pursuant to CrR 3.3(d)(8) because of a clerical error in entering the speedy trial expiration date where the prosecutor was assigned to try another case on the expiration date of the instant case. We find no abuse of discretion and affirm.

On May 8, 1985, Raper was charged by information with one count of first-degree robbery while armed with a deadly weapon and one count of first-degree kidnapping while armed with a deadly weapon for an incident occurring on about May 5, 1985. As set forth in the record and the undisputed findings of fact, the following dates and events are relevant to Raper's claim of a CrR 3.3 speedy trial violation:

May 9, 1985. Arraignment.

May 24, 1985. Order entered setting trial date of June 25, 1985. CrR 3.3

expiration date recorded as July 8, 1985. Codefendant

James Jackson waived speedy trial for seven days, with his

new expiration date recorded as July 15, 1985.

June 25, 1985. Case called on the trial calendar.

June 26, 1985. During some of these dates defense

June 27, 1985. counsel was unavailable.

July 2, 1985.

July 3, 1985.

July 5, 1985. Both counsel appeared at the call of the trial calendar.

Neither was assigned to try another case.

July 8, 1985. Both counsel appeared at the call of the trial calendar.

Prosecutor assigned to try the instant case was assigned

on this day to try another case with a July 16, 1985,

speedy trial expiration date.

July 9, 1985. Case called on the trial calendar.

July 11, 1985. Both counsel were assigned to try the instant case.

Defense counsel raised speedy trial rule violation for

the first time. On July 11, 1985, in moving for a dismissal based upon an alleged CrR 3.3 speedy trial violation, the defense counsel asserted that the speedy trial expiration date, which was July 8, 1985, had passed. It is undisputed that July 8 was the correct expiration date. Upon the codefendant Jackson's seven-day speedy trial waiver on May 24, his new expiration date of July 15, 1985, was apparently entered into the computer as the expiration date for both Jackson and Raper. The record does not indicate when the defense counsel discovered that the correct expiration date had passed.

The prosecutor argued that the trial court should grant a retroactive five-day extension of the trial time pursuant to CrR 3.3(d)(8). According to him, the normal procedure when an attorney is in trial in another case, as he was on July 8, 1985, is that an automatic five-day extension is granted, and the reason such an extension was not granted in the instant case is that the court had an incorrect expiration date before it. The undisputed finding is that the defendant did not allege any prejudice resulting from the time extension.

The court orally on July 11, 1985, and later in writing granted a retroactive five-day extension effective July 8, 1985. Jury selection began on July 11, 1985, and Raper was found guilty as charged on both counts.

CrR 3.3(d)(8) ¹ authorizes the trial court, even if the time for trial has expired, to extend the time for trial no more than five days because of unavoidable or unforeseen circumstances beyond the control of the court or the parties unless the defendant will be substantially prejudiced in his defense. State v. Stock, 44 Wash.App. 467, 473, 722 P.2d 1330 (1986); State v. Brown, 40 Wash.App. 91, 94, 697 P.2d 583, review denied, 103 Wash.2d 1041 (1985).

Here pursuant to CrR 3.3(d)(8) the trial court granted a five-day extension of the speedy trial rule period with the extension to be retroactively effective as of the speedy trial expiration date. Raper argues that because CrR 3.3(d)(8) extensions are treated as continuances by both CrR 3.3 and the case law, both CrR 3.3(h)(2), which deals with continuances, and the case law prohibit a retroactive extension under CrR 3.3(d)(8) based upon a motion that is made after the speedy trial expiration date.

Raper assigns error to these related conclusions of law entered by the trial court:

1. There is a distinction between the words "continuance or other delay" and "extension" as used in CrR 3.3(h) and CrR 3.3(d)[,] respectively.

2. CrR 3.3(d) is a highly technical administrative rule that is not the embodiment of the constitutional right to a speedy trial.

3. A continuance granted under CrR 3.3(h) causes the speedy trial rule to stop running. An extension granted under CrR 3.3(d) allows the speedy trial rule to exceed the sixty or ninety day period in the event that, for unavoidable circumstances beyond control of the court or parties, the case has not commenced within the speedy trial period.

4. CrR 3.3(d)(8) permits the court to extend the time for trial no more than five days even if the time for trial has expired.

Conclusions of law 1-4.

First, conclusion of law 2 is amply supported by the case law, which indicates that trial within the CrR 3.3 time period is not constitutionally mandated. E.g., State v. Terrovona, 105 Wash.2d 632, 651, 716 P.2d 295 (1986); State v. Wraspir, 25 Wash.App. 457, 461, 607 P.2d 335 (1980).

Raper's argument that a motion for an extension pursuant to CrR 3.3(d)(8) may not be brought after the CrR 3.3 expiration date is based upon the premise that a CrR 3.3(d)(8) extension is governed by subsection (h)(2), ² which provides:

(h) Continuances. Continuances or other delays may be granted as follows:

* * *

(2) On motion of the State, the court or a party, the court may continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of his or her defense. The motion must be filed on or before the date set for trial or the last day of any continuance or extension granted pursuant to this rule. The court must state on the record or in writing the reasons for the continuance.

A motion for a continuance or other delay under subsection (h)(2) cannot be filed after the date set for trial or the last day of a prior continuance or extension.

As Raper notes, some of the cases do refer to a CrR 3.3(d)(8) extension as a "continuance," e.g., State v. Stock, supra; State v. Brown, supra, and CrR 3.3(h)(2) does contain the word, "extension," although it does not necessarily refer to a delay granted pursuant to subsection (h)(2). Further, as the trial court stated at the hearing on the motion to dismiss the charges, a subsection (d)(8) extension and a subsection (h)(2) continuance have essentially the same practical effect, i.e., of delaying the running of the speedy trial period for purposes of alleging a CrR 3.3 violation.

However, CrR 3.3(d)(8) extensions and (h)(2) continuances are dealt with in different parts of the court rule and are granted upon different grounds. CrR 3.3(d)(8) authorizes the trial court, even if the time for trial has expired, to extend the time within which trial must be held in five-day increments if unforeseen or unavoidable circumstances arise unless the defendant will be substantially prejudiced in his defense. See State v. Stock, supra; State v. Brown, supra.

CrR 3.3(h)(2) provides for a continuance which may be granted, in the court's discretion, upon the motion of the State, the court, or a party when required in the administration of justice and if the defendant will not be substantially prejudiced in the presentation of his defense. State v. Terrovona, supra; State v. Guloy, 104 Wash.2d 412, 428, 705 P.2d 1182 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986). The court rule does not specify the maximum time period for a continuance granted pursuant to subsection (h)(2) as it does for a subsection (d)(8) extension. See 4A L. Orland, Wash.Prac., Rules Practice § 6202, at 114 (3d ed. 1983). Subsections (d)(8) and (h)(2) differ in the time periods involved and the bases for the court's determination.

CrR 3.3's section (d) deals with what are called "extensions" of the sixty- and ninety-day time limits in computing the time for trial notwithstanding section (c), which sets the time periods; in contrast, section (h) deals with "[c]ontinuances or other delays" which, under subsection (g)(3), are excluded in computing the time for trial. Nowhere in the court rule is there an indication that subsection (h)(2)'s time requirement for bringing a motion applies to a motion for an extension under subsection (d)(8). In fact, subsection (d)(8) expressly permits the trial court to extend the time within which trial must be held "even if the time for trial has expired."

A court rule must be construed so that no word, clause or sentence is superfluous, void or insignificant. The language must be given its plain meaning according to English grammar usage. When the language of a rule is clear, a court cannot construe it contrary to its plain statement. State v. Bernhard, 45 Wash.App. 590, 598, 726 P.2d 991 (1986), review denied, 107 Wash.2d 1023 (1987).

Here CrR 3.3(d)(8)'s clear language that the time for trial may be extended for no more than five days "even if the time for trial has expired" precludes a contrary construction, as would result if subsection (h)(2)'s requirement that a motion be brought no later than the speedy trial expiration date...